Bypass Constitution?

The Washington Times ^ | October 30, 2003 | Greg Pierce

[cornelis]

I suspect," Justice O'Connor said, "that over time we will rely increasingly . . . "

She's convincingly misleading. Some Wormwood's got her ear.

[CatoRenasci]

As much as I am a Jeffersonian, I am not comfortable with the notion that the legislative branch is the ultimate arbiter of the Consitution. Hence, I tend to think Marbury was correctly decided. I think the problem here is in Article 6, which makes treaties part of the supreme law of the land. I think we would have been better off had the Constitution been clear that no treaty provision ratified by the senate which was otherwise inconsistent with the Constitution could be effective unless it were adopted and ratified by the states in the same manner as an amendment to the Constitution. But, that's not what the Constitution says.

[CatoRenasci]

I like that approach, but where is your decisional authority for the position?

As far as I know, there has not been any Supreme Court decision on a treaty provision that was in direct conflict with the Constitution (such as a treaty provision to ban the possession of private firearms which would directly conflict with the Second Amendment, or treaty provision providing for an ex post facto law or a bill of attainder against an individual).

[BadAndy]

Yet another reason to impeach this stupid woman, as if her decision on sodomy wasn't enough. At least the nutty Ruth Buzzy Ginsburg wing of the court PRETEND they are interpreting the US constituion. O'Connor implys that she bases her decisions on poll numbers from the international community.

[general_re]

I think we would have been better off had the Constitution been clear that no treaty provision ratified by the senate which was otherwise inconsistent with the Constitution could be effective unless it were adopted and ratified by the states in the same manner as an amendment to the Constitution. But, that's not what the Constitution says.

But that is basically what constitutional jurisprudence says, though - cf. Reid v. Covert.

[CatoRenasci]

I would also point out that the legislative branch does have weapons in a real fight with the courts: it can reduce the jurisdiction of the Supreme Court to the Constitutional minimum, it can abolish the inferior federal Article III courts (while paying the judges for life) and/or limit their jurisdiction and/or reduce their funding (other than judges salaries). The fact is Congress has no stomach for a fight with the Judicial Branch. Never has. And, Power abhors a vacuum. We have the Supreme Court we deserve, unfortunately.

[cyncooper]

My response to you was a simple answer to your question in #23 when you asked what treaties I was referring to. At that time we were not discussing who was right in their interpretation of a very poorly written article.

Well, since I posted my "question" after citing from the article the portion that showed O'Connor was clearly referring to domestic issues, I assumed it would be obvious my "question" was tongue in cheek.

[You Dirty Rats]

The judicial system in this country is broken.

Sandra Dee is a disgrace.

I HATE ACTIVIST JUSTICES!!

[longtermmemmory]

leftist lawyers are idiots, and ignorant. They support "international law", turning sovereignty over for security, fear guns (b/c they have nightmares about being the first ones against the wall), have no notion or care of American History, arrogant beyond belief in their notion of self importance, and too foolish to realize that in their totalitarian ideal no lawyers are required in a police state.

[Radioactive]

Impeach any and all Supremes or any other judge that uses international law as a basis for a decision.

Then just execute the damned SOB's for treason.

Then we won't ever have to deal with this crap again.

Hear that Ginzburg?

[general_re]

As far as I know, there has not been any Supreme Court decision on a treaty provision that was in direct conflict with the Constitution (such as a treaty provision to ban the possession of private firearms which would directly conflict with the Second Amendment, or treaty provision providing for an ex post facto law or a bill of attainder against an individual).

Allow me to expand on my rather cryptic previous post by contradicting you ;)

Justice Black, for the Court:

At the time of Mrs. Covert's alleged offense, an executive agreement was in effect between the United States and Great Britain which permitted United States' military courts to exercise exclusive jurisdiction over offenses committed in Great Britain by American servicemen or their dependents. For its part, the United States agreed that these military courts would be willing and able to try and to punish all offenses against the laws of Great Britain by such persons. In all material respects, the same situation existed in Japan when Mrs. Smith killed her husband. 30 Even though a court-martial does not give an accused trial by jury and other Bill of Rights protections, the Government contends that Art. 2 (11) of the UCMJ, insofar as it provides for the military trial of dependents accompanying the armed forces in Great Britain and Japan, can be sustained as legislation which is necessary and proper to carry out the United States' obligations under the international agreements made with those countries. The obvious and decisive answer to this, of course, is that no agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.

Article VI, the Supremacy Clause of the Constitution, declares:

"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;... ."

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. These debates as well as the history that surrounds the adoption of the treaty provision in Article VI make it clear that the reason treaties were not limited to those made in "pursuance" of the Constitution was so that agreements made by the United States under the Articles of Confederation, including the important peace treaties which concluded the Revolutionary War, would remain in effect. It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights — let alone alien to our entire constitutional history and tradition — to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions. In effect, such construction would permit amendment of that document in a manner not sanctioned by Article V. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. For example, in Geofroy v. Riggs, 133 U.S. 258, 267 , it declared:

"The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent."

This Court has also repeatedly taken the position that an Act of Congress, which must comply with the Constitution, is on a full parity with a treaty, and that when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null. It would be completely anomalous to say that a treaty need not comply with the Constitution when such an agreement can be overridden by a statute that must conform to that instrument.

- Reid v. Covert, 354 U.S. 1 (1957)

[Sloth]

Nexus, schmexus. Here is the applicable footnote in Atkins v. Virgina, the 2002 case cited: "p. 2. Moreover, within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved. Brief for The European Union as Amicus Curiae in McCarver v. North Carolina, O. T. 2001, No. 00-8727, p. 4."

There was no international extradition involved in Atkins v. Virginia. It was a domestic case.

[AuH2ORepublican]

"Perhaps my statement would have been a little clearer had I said that the ratification of treaties are an essential power granted under the constitution, and has a force and effect equal to any federal statute."

---

Yes, it would have been clearer---and correct. But saying that treaties are "part of the Constitution" is as silly as saying that federal laws are "part of the Constitution"; they are certainly authorized by the Constitution, and form part of the Supreme Law of the Land, but are by no means equal in hierarchy to provisions of the U.S. Constitution.


"Would your desire to have her impeached change if her statement was limited to these such treaties?"

---

Well, as I stated in post #20, I believe O'Connor should have been impeached for her opinion in Casey v. Planned Parenthood and some of her other decisions based on stare decisis when it goes against *her own interpretation* of the Constitution (Supreme Court Justices are supposed to interpret the Constitution, not merely follow the opinion of other branches or their predecessors on the Court). But laying that aside, I would have no problem if O'Connor or any other Justice acknowledged that treaties properly adopted by the United States form part of the Supreme Law of the Land and are thus treated with as much respect as a law passed by Congress (although a treaty cannot trump the Constitution, which is higher law). However, I reiterate, THAT'S NOT WHAT O'CONNOR SAID. Read the article again, and you'll see that your position that treaties are part of the supreme law of the land, while undoubtedly correct, is not a defense of O'Connor because O'Connor is talking about using European precedents when deciding cases in the U.S., not merely interpreting treaties to which the U.S. is party.

[exmarine]

Justice Sandra Day O'Connor predicts that the U.S. Supreme Court will increasingly base its decisions on international law rather than the U.S. Constitution, according to an article in the Atlanta Journal-Constitution.

THIS IS ILLEGAL. These elitists should be ARRESTED for subversion of the Law and thrown in the slammer. Where are you Congress? Where are you Bush? Where is your loyalty to YOUR OATH TO THE CONSTITUTION? Huh? I am fed up with these cowardly spineless jellyfish. Bush spends too much time brown-nosing the liberal establishment, and so do those republican eunochs in Congress. The day is coming when Americans will DEFY these miscreants who call themselves Justices.

[ClintonBeGone]

Nexus, schmexus. Here is the applicable footnote

In the jurisprudience of the United States, in particular, the SCOTUS, footnotes do not a precendent make.

[CatoRenasci]

Thanks for the reference. You should specifiy it's Reid v. Covert, 354 U.S. 1 (1957) (Reid II) and not the earlier case that affirmed the conviction.

I think Reid is narrower than I would like: the treaty provision would have to be explicitly contrary to the Consititution, rather than where the Constitution is silent (e.g. the Holland case cited in the majority option in Reid II), but it is some comfort.

The more important question is whether Reid II is still good law.

[exmarine]

Supreme Court Justices are supposed to interpret the Constitution, not merely follow the opinion of other branches or their predecessors on the Court

It's called legal positivism - the legal term for moral relativism. There is no right and wrong (morality), therefore, there is also no objectively right or wrong law. Law evolves as morality evolves. It all springs from the delightful secular humanist (atheistic) worldview, WHICH IS THE ENEMY OF EVERY FREEDOM LOVING AMERICAN!

[CatoRenasci]

Thanks, as you see from my post above, I found it from your cryptic reference and read it while you were posting.

[cornelis]

I found it from your cryptic reference and read it while you were posting

Right.

[AuH2ORepublican]

General Re is correct, treaties must abide by the Constitution. Perhaps Cato meant that the treaty-making power is independent of the other ennumerated powers, and thus the government may do through a treaty what it cannot do with a law. IIRC, there was a Supreme Court case in which the government regulated the treatment of migratory birds through a treaty with Canada after a law that did the same thing was declared unconstitutional because it did not fall under Congress's power under the Commerce Clause (of course, that was back when the Commerce Clause actually meant something).